SEC Authority Over EB-5 Confirmed in Court Victory

On Thursday, June 29, 2017, in the closely-watched EB-5 case SEC v. Feng, No. 2:15-cv-09420 (C.D. CA, filed December 7, 2015), a U.S. district court in California affirmed the authority of the Securities and Exchange Commission (SEC) to oversee EB-5 investment offerings.

New York attorney Hui Feng was one of several immigration attorneys sued by the SEC in 2015 for receiving referral fees from client purchases of investment opportunities without registering as a broker. Feng and his firm alone declined to settle. Instead, they challenged the SEC’s application of federal securities laws to EB-5 investments by arguing that EB-5 investors do not invest for profit, but instead invest to receive U.S. visas.

The court summarily rejected Feng’s contentions. The district judge held that EB-5 investments are securities under the federal securities laws. The court further determined that it had received sufficient uncontested evidence to rule for the SEC by summary judgment on all points of the agency’s civil enforcement suit – that is, without the need for a trial. The court found Feng liable for unregistered broker-dealer activity and for violating the anti-fraud statutes of both major federal securities laws by concealing his referral fees from clients and regional centers. The ruling requires Feng and his firm to (1) disgorge approximately $1.8 million in unlawful commissions (2) plus interest and (3) pay nearly $1 million in civil penalties, and (4) permanently enjoins them from further violations of the federal securities laws.

The June 29 decision, as the decision of a District Court in the Ninth Circuit, is not binding on other federal courts. It also remains subject to appeal. For the time being, however, it stands as a blunt warning to EB-5 issuers and promoters that courts will enforce strict compliance with federal securities laws, and that failure to comply can lead to severe and costly penalties.